Tuesday, 6 April 2004

Class-action lawsuit challenges USA "No-Fly" list

The American Civil Liberties Union today filed a Federal class action lawsuit seeking a declaratory judgement against the USA Transportation Security Administration (TSA) and the USA Department of Homeland Security (DHS) that their “maintenance, management, and dissemination of the No-Fly List are unconstitutional under the Fifth and Fourth Amendments” to the Constitution of the USA.

Oddly, the lawsuit doen’t raise the question of the constiitutionality of the No-Fly List under the clause of the First Amendment protecting “the right of the people… peacably to assemble”. Given that “to travel” is, in most cases, “to assemble” — the majority of journeys by air are acts of assembly with business associates, fellow participants in business and organizations meetings and conventions, and/or friends and relatives — such acts of travel are acts of assembly directly protected under the assembly clause of the First Amendment.

Today’s complaint was filed in Federal District Court in Seattle, WA, on behalf of seven named plaintiffs (click on the thumbnail photos for statements by each of the named plaintiffs) including a member of the USA military on active duty, a retired Presbyterian minister, and staff members of both the ACLU itself and the American Friends Service Committee (a pacifist organization which previously received the Nobel Peace Prize). The lawsuit seeks certification as a class action on behalf of “all those who have been or will be subject to interrogations, delays, enhanced searches, and/or detentions as a result of having a name identical or similar to one on the Non-Fly List.” The named plaintiffs include a “David Nelson” (one of many who have reportedly suffered as a result of the inclusion of that name on the No-Fly List) and a “Mohamed Ibrahim” (a name probably more common in the world than “John Smith”).

The inclusion of an active-duty member of the military in those singled out for detention and more intrusive search under the government’s own No-Fly List procedures raises particularly disturbing questions about the ability of the military itself, and the government in general, to tell “friend” from “foe” in cases where the consequences of misidentification might be more severe, even deadly, such as “friendly fire”.

In November 2003, in response to an ACLU lawsuit under the Freedom of Information Act, the FBI and the TSA released 94 pages of heavily expurgated documents concerning the “No-Fly” and “permanent selectee” [for secondary security screening] lists. But as the ACLU analysis of the documents points out, all they really show is that the government still has no coherent process for creating, maintaining, or administering the lists.

The Electronic Privacy Information Center (EPIC) has also sued the TSA under the FOIA for information about the No-Fly List. But today’s action is the first legal challenge to the list itself.

Since the government hasn’t revealed how names are placed on the No-Fly List, there’s no way to know whether any of the names on the list correspond to those of people who are genuinely so dangerous that they shouldn’t be allowed to travel on common carriers. As common carriers, airlines are legally obligated to accept all passengers paying the published tariff and complying with their conditions of carriage as filed with the government.

But there are legal procedures, already in existence, for dealing with people known to be violent, dangerous, and likely to carry out attacks in particular public places.

Tens of thousands of times each year in the USA, victims of stalking and domestic violence go to court, present evidence, and obtain injunctions against those shown to be sufficiently dangerous (to the court’s satisfaction, after an adversary evidentiary hearing) forbidding them from being present or travelling, even on public rights-of-way, within a certain distance of the complainants or their homes or workplaces.

Once such a restraining order is issued by a judge, there are established legal standards as to the level of particularized suspicion and evidence required before someone suspected of being in such a place in violation of a court’s restraining order can be detaineed, questioned, or forced to produce evidence of their identity. The circumstances in which identification or evidence of identity can be demanded in a public place is currently before the USA Supreme Court in Hiibel v. Nevada, in which the police claimed that their demand that Hiibel identify himself was in response to a report of possible domestic violence.

More people are killed each year in the USA by stalkers and domestic abusers subject to protective injunctions by their victims than were killed by airline terrorists in 2001. That’s an ongoing problem that calls for creative responses by all of us. But the presence in public places, on public rights of way, and on common carriers of people believed to pose a danger to others is not new, and does not call for new, extra-judicial, and unconstitutional measures such as the No-Fly List.

The TSA claims that only a few thousand names are on the No-Fly and permanent selectee lists, so the task of presenting those names, and the evidence against them, to courts and obtaining injunctions against them — on the basis of particularized suspicion, judicial determinations, and adversary evidentiary hearings — would be much simpler, easier, and less costly than the current cost of legal proceedings for restraining orders in stalking cases. It would also be much less costly that the billion dollars or more that it would cost to build the CAPPS-II airline passenger profiling system.

More important, use of established legal standards and procedures for obtaining and enforcing court orders restraining people’s presence in airport terminals and gate areas, or travel by common-carrier airlines, would greatly reduce the infringement on our right to travel and our First Amendment right to assemble.

[Addendum, 6 April 2004: The ACLU has added a form to their Web site for people who may have been selected for secondary screening or other disparate treatment on the basis of the No-Fly List or “selectee” list, and who may be part of the class of people affected by the class action lawsuit, to report their experience. This supplements the ACLU’s ongoing collection through a separate form of reports of racial profiling and discriminatory treatment in air travel. The ACLU has also set up a Web form to send a fax or e-mail message to the largest USA-based airlines asking them not to participate in passenger profiling either through the No-Fly and selectee lists or through CAPPS-II.]

Link | Posted by Edward on Tuesday, 6 April 2004, 09:03 ( 9:03 AM)

Has anyone experienced extra security or delay at airports because a domestic violence restraining order had been entered against them years ago? What is being done in those circumstances? I have a client who is in that category and am not sure how to advise them.

Posted by: marla, 27 June 2007, 19:37 ( 7:37 PM)
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